People v. Holzhauser, A107420 (Cal. App. 6/19/2007)

• Decision Date: 19 June 2007
• Docket Number: A107420
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CHAD HOLZHAUSER, Defendant and Appellant.
• Court: California Court of Appeals

Page 1

THE PEOPLE, Plaintiff and Respondent, v. CHAD HOLZHAUSER, Defendant and Appellant.

A107420

Court of Appeals of California, First Appellate District, Division One

June 19, 2007

NOT TO BE PUBLISHED

Appeal from the Del Norte County Super. Ct. No. CRF 03-9593.

SWAGER, J.

Defendant was convicted following a jury trial of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), misdemeanor assault (Pen. Code, § 240), and making a criminal threat (Pen. Code, § 422).¹ He received a four-year upper term for assault with a deadly weapon, a three-year concurrent upper term for the conviction of making a criminal threat, and 180 days in county jail for the misdemeanor assault conviction. In a prior appeal we reversed the conviction of making a criminal threat for lack of supporting evidence of the victim's sustained fear, but otherwise affirmed the judgment. Bound by the California Supreme Court opinion in People v. Black (2005) 35 Cal.4th 1238 (Black), we concluded that "defendant was not denied his due process rights to a jury trial and finding of guilt beyond a reasonable doubt under [Blakely v. Washington (2004) 542 U.S. 296] by the trial court's imposition of an upper term."

The United States Supreme Court then reversed Black in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham), and concluded, "Contrary to the Black court's holding, our decisions from Apprendi² to Booker³ point to the middle term specified in California's statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." (Cunningham, supra, 166 L.Ed.2d 856, 876.) This case has now been remanded to us for further consideration in light of Cunningham. We conclude that no prejudicial sentencing error occurred and affirm the judgment.

DISCUSSION

I. The Claim of Forfeiture.

We first dispose of respondent's contention that defendant "forfeited" any claim of Blakely error by failing to request a jury determination or otherwise object to the reasons the court gave for the sentence. Ordinarily, a defendant's failure to object in the trial court, even to errors of constitutional dimension, may lead to forfeiture of his claim of error on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 881; People v. Gonzalez (2003) 31 Cal.4th 745, 751-752.) However, "Not all claims of error are prohibited in the absence of a timely objection in the trial court. A defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights." (People v. Vera (1997) 15 Cal.4th 269, 276.) Further, failure to object does not prevent correction or vacation of an "unauthorized sentence" on appeal. (In re Birdwell (1996) 50 Cal.App.4th 926, 931.) "An unauthorized sentence is a narrow exception to the requirement that the parties raise their claims in the trial court to preserve the issue for appeal." (People v. Breazell (2002) 104 Cal.App.4th 298, 304.) "[A] sentence is generally `unauthorized' where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is `clear and correctable' independent of any factual issues presented by the record at sentencing." (People v. Scott (1994) 9 Cal.4th 331, 354; see also People v. Breazell, supra, at p. 304; People v. McGee (1993) 15 Cal.App.4th 107, 117.) "Claims involving unauthorized sentences or sentences entered in excess of jurisdiction can be raised at any time." (People v. Andrade (2002) 100 Cal.App.4th 351, 354; see also People v. Turner (2002) 96 Cal.App.4th 1409, 1415.) A related exception to the waiver rule is that it "is generally not applied when the alleged error involves a pure question of law, which can be resolved on appeal without reference to a record developed below." (People v. Williams (1999) 77 Cal.App.4th 436, 460.)

Here, defendant has presented a claim of deprivation of the fundamental constitutional rights to jury trial and proof beyond a reasonable doubt. (People v. Holmes (1960) 54 Cal.2d 442, 443-444.) The constitutional challenge made by defendant is an issue of law that we may decide without reference to the particular sentencing record developed in the trial court. (In re Justin S. (2001) 93 Cal.App.4th 811, 815.) And if his position is found to have merit, the sentence may not lawfully be imposed under any circumstances without a jury trial. As an unauthorized component of the disposition of defendant's case the error may be corrected on appeal despite the lack of an objection in the trial court. (Ibid. ; People v. Cleveland (2001) 87 Cal.App.4th 263, 268, fn. 2; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1533-1534; People v. Chambers (1998) 65 Cal.App.4th 819, 823; In re Paul R. (1996) 42 Cal.App.4th 1582, 1590; People v. Sexton (1995) 33 Cal.App.4th 64, 69.)

Finally, Cunningham was decided after defendant was sentenced. Thus, given the state of the controlling law at the time of the sentencing hearing, defendant had no reason to object in the face of established California law that definitively denied criminal defendants the constitutional right to a jury trial in connection with the imposition of an upper term of imprisonment. (See People v. Groves (2003) 107 Cal.App.4th 1227, 1230-1232; People v. Ramos (1980) 106 Cal.App.3d 591, 605-606; People v. Williams (1980) 103 Cal.App.3d 507, 510; People v. Betterton (1979) 93 Cal.App.3d 406, 410-411; People v. Nelson (1978) 85 Cal.App.3d 99, 102-103; United States v. Harrison (8th Cir. 2003) 340 F.3d 497, 500.) We cannot find that defendant voluntarily and intelligently waived a known right or forfeited his right to object on appeal by failing specifically to raise an objection in a timely fashion. We therefore conclude that defendant is not foreclosed from complaining of denial of the right to a jury trial under Blakely, and despite the lack of an objection below we elect to address his constitutional claim of Blakely error on the merits. (People v. Marshall (1996) 13 Cal.4th 799, 831-832;People v. Ashmus (1991) 54 Cal.3d 932, 976; People v. Guess (2007) 150 Cal.App.4th 148, 164; People v. Waymire (2007) 149 Cal.App.4th 1448, 1453-1454; In re Khonsavanh S. (1998) 67 Cal.App.4th 532, 537; People v. Williams (1998) 61 Cal.App.4th 649, 657.)

II. The Imposition of an Upper Term.

We turn to defendant's claim that under Cunningham his "constitutional rights to a jury trial and proof beyond a reasonable doubt" were violated by the imposition of an upper term. The trial court articulated two aggravating factors in support of the decision to impose an upper term: defendant's "violent conduct which indicates a substantial danger to society," and his "numerous" prior convictions "of increasing seriousness." (Cal. Rules of Court, rule 4.421(b)(1), (2).) In accordance with the decision in Cunningham, we conclude that the trial court's finding of the aggravating factor of "violent conduct which indicates a substantial danger to society" (Cal. Rules of Court, rule 4.421(b)(1)) was error. (Cunningham, supra, 166 L.Ed.2d 856, 876; People v. Diaz (2007) 150 Cal.App.4th 254, 265.)

The court's finding of an aggravating factor related to defendant's prior conviction, however, did not violate the precepts articulated in Blakely and Cunningham. In Apprendi the court specifically declared, based on its prior decision in Almendarez-Torres v. United States (1998) 523 U.S. 224, that, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. 466, 490, italics added; see also People v. Taylor (2004) 118 Cal.App.4th 11, 28; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 831; People v. Lee (2003) 111 Cal.App.4th 1310, 1314.) Thus, "[b]y its terms, the holding of Apprendi does not apply to `the fact of a prior conviction . . . .' [Citation.]" (People v. Taylor, supra, at p. 28.) "Apprendi was absolutely clear in excepting the fact of prior convictions from its new rule." (Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 154.)

Nothing articulated in the Blakely or Cunningham opinions casts doubt upon the exclusion stated in Apprendi of prior conviction allegations from the constitutional right to jury trial. (People v. Waymire, supra, 149 Cal.App.4th 1448, 1456.) In fact, in Cunningham the court repeated once again the established limitation on the Apprendi rule that "the [f]ederal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Cunningham, supra, 166 L.Ed.2d 856, 864, italics added.) The California Supreme Court has consistently held that neither the state nor federal Constitution confer the right to have a jury determine any factual issues relating to prior convictions alleged for purposes of enhancing sentence. (People v. Epps (2001) 25 Cal.4th 19, 23; People v. Kelii (1999) 21 Cal.4th 452, 455; People v. Vera, supra, 15 Cal.4th 269, 277; People v. Wiley (1995) 9 Cal.4th 580, 585.) Even in the aftermath of Apprendi our high court held: "The right, if any, to a jury trial of prior conviction allegations derives from sections 1025 and 1158, not from the state or federal Constitution." (People v. Epps, supra, at p. 23; see also People v. Belmares (2003) 106 Cal.App.4th 19, 27.) We therefore conclude that the trial court in the case before us did not violate defendant's jury trial or due process rights by finding an aggravating circumstance related to his prior convictions. (People v. Waymire, supra,...